The Canadian government needs to commit to action on digital locks, fair dealing rights, government copyright concerns and Indigenous copyright.
by David Robinson, Susan Haigh. Originally published on Policy Options
May 13, 2023
(Version française disponible ici)
Canadian copyright legislation is once again up for review. The last review was completed in 2019, with parliamentarians receiving hundreds of oral and written testimonies. Based on this, the House of Commons industry, science and technology committee released a comprehensive report with 36 recommendations.
Three years later, only a small number of those recommendations are partially completed or in progress. The general copyright term was extended to comply with our new trade agreement with the United States and Mexico. The government committed to add a provision to the Copyright Act for artists’ resale rights. Then, in this year’s federal budget, the right to circumvent copyright laws to repair electronics and home appliances was promised.
Canada’s university and college teachers, and librarians are calling for faster action in four other areas to make sure that copyright law balances public and private interests. This includes circumventing digital locks for legal purposes; expanding fair dealing rights; releasing federal government publications immediately into the public domain; and addressing Indigenous concerns.
1. Provide better access to digital resources
The current Copyright Act prohibits the circumvention of “digital locks.” These locks prevent third parties from fixing devices, which is why we need a “right to repair.” They also prevent accessing digital works – even if the access is for a legal purpose such as library lending, fair dealing for education and research, or preservation of or accessing works in the public domain (works that are no longer protected by copyright).
The Copyright Act should be amended to allow digital locks to be circumvented for non-infringing purposes that are legal – for example, to change the format of a DVD for streaming in a classroom, to mine data and text for research, and for the purpose of library preservation and stewardship.
2. Offset term extension by expanding fair dealing
The new trade agreement with the United States and Mexico extended copyright in Canada from the life of the author plus 50 years to the life of the author plus 70 years. This extension ignored repeated calls for measures that could reduce the economic and cultural harm and burden from freezing the public domain for another 20 years.
This extension tips the copyright balance toward a minority of content owners whose works remain profitable 50 years after death. The majority languish and are unable to be digitized, republished or used to innovate as they would be if in the public domain.
Access must be improved for students, teachers, researchers, librarians and archivists, and the public to use copyright-protected works for fair purposes.
The Copyright Act’s fair-dealing provision provides a limited right to copy literary, artistic and musical works in a way that is fair for both owners and users of the material. With extended copyright terms undermining the availability of content, fair dealing must not only be protected, it must also be enhanced. An improvement to the legislation would be to add “such as” before the fair-dealing purposes already listed. This creates more flexibility, facilitating knowledge sharing and innovation – and is a right that exists in the United States.
3. Remove Crown copyright
Under the Copyright Act, government publications don’t enter the public domain for 50 years. This should be amended to make material freely available upon release to the public. Removing economic copyright controls from government works allows better use of these resources by individuals, corporations and other organizations.
It also allows librarians to continue in their role as stewards of government information and supports the aims of Canada’s open government initiative.
The empty success of recent amendments to Canada’s right-to-repair bill
Librarians and archivists are sometimes denied permission to reproduce and redistribute government works already made public. When web content is missed by official web collection efforts, this content is lost to students, instructors and journalists. In addition, digitization projects have been delayed – sometimes for years – or abandoned due to confusion about Crown copyright status and the associated legal rights to reproduce and share these works.
Removing Crown copyright would align Canada with the United States in its treatment of federal government works.
4. Recognize Indigenous control over Indigenous work
Copyright law, based on western notions of property ownership, often conflicts with Indigenous understandings of the use, sharing and control of culture and knowledge. This has resulted in Indigenous creators and communities losing control over their heritage.
The federal government must ensure Indigenous Peoples can develop their own rules on how the results of their creativity are shared, ensuring that custodianship, dissemination and compensation occur according to their own traditions. This is also part of the United Nations Declaration on the Rights of Indigenous Peoples Act, which passed in 2021. At minimum, a non-derogation clause could be considered.
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Canada’s academic staff, teachers, researchers and librarians are creators and users of copyright-protected content. The success of post-secondary education, and the individual and collective benefits it enables, depends on making information available to others for the advancement of knowledge. These four recommendations should be part of changes to the Copyright Act.
This article first appeared on Policy Options and is republished here under a Creative Commons license.